Justice Scalia says Supreme Court should take back seat to voters

ST. LOUIS - Supreme Court Justice Antonin Scalia said Wednesday he doesn't want an overly broad job description. In fact, he wants the U.S. Supreme Court to stay out of the nation's most important decision making.

Scalia said too much regulatory power has shifted to the judicial branch during his speech before hundreds of attorneys at a Bar Association of Metropolitan St. Louis luncheon.

Over the last 50 years, the United States has put too much emphasis on letting bureaucratic experts make important policy decisions, Scalia said. Such decisions, he said, ultimately come down to a moral judgment.

"There's no right answer - only a policy preference," Scalia said. "It is utterly impossible to take politics out of policy decisions."

Scalia criticized the U.S. Supreme Court for its ruling in the 1973 Roe v. Wade case, which established the constitutional right to abortion. He said such decisions can't be made without a moral judgment, and should therefore be left to voters or the politicians they elect.

Scalia compared Roe v. Wade with a ruling in 2000 by the European Court of Human Rights which upheld the privacy of a homosexual man who engaged in group sex. Scalia said the ruling prohibited nations in the European Union from grappling independently with the question of whether homosexuality is morally acceptable.

"Surely the binding answer to that question should not be decided by seven unelected judges," Scalia said, drawing applause from the crowd.

Scalia drew laughter from the crowd several times, once when he sarcastically commented on the notion judges should liberally interpret the U.S. Constitution to keep pace with America's maturing moral standards.

"Societies only mature; they never rot," he said.

Earlier in the day, Scalia attended a Law Day Mass celebrated by Archbishop Raymond Burke at the Basilica of St. Louis. They were joined by Gov. Matt Blunt and Mayor Francis Slay.

European Court of Human Rights which upheld the privacy of a homosexual man who engaged in group sex. Scalia said the ruling prohibited nations in the European Union from grappling independently with the question of whether homosexuality is morally acceptable.

"Surely the binding answer to that question should not be decided by seven unelected judges," Scalia said, drawing applause from the crowd.

Over the last 50 years, the United States has put too much emphasis on letting bureaucratic experts make important policy decisions, Scalia said. Such decisions, he said, ultimately come down to a moral judgment.

Can someone point out the part of the Constitution that gives elected officials, bureaucratic experts, or Judges the authority to make "Moral Judgments"?

4
posted on 05/04/2006 12:06:53 PM PDT
by LPM1888
("If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy")

He is right. Also when the American people really stop looking at the courts and the government to solve our problems; we will be able to really move forward and be much better for it. We will have to do it because the courts and the government won't.

Well, obviously the SC judges that made the, "MORAL" decision of Roe vs. Wade for the entire country, felt they were far superior to everyone. After all, shouldn't 7 people be able to decide what over 2 billion people do. And by the way, we have 9 now. Let's get rid of 2. I vote to drop Ginsburg and Souter...

Yeah, what he said. Congress shares in this blame big time. Federal courts spend their time deciding local issues every day, because Congress passed so many national laws that override state proceedings.

This from a justice who found new and novel interpretations of the Necessary and Proper Clause to overrule the wishes of the voters of the State of California when it came to medical marijuana - and thereby missed a chance to take a bite out of Wickard.

Scalia talks the talk when it comes to originalism, but at times he fails to walk the walk.

8
posted on 05/04/2006 12:31:58 PM PDT
by dirtboy
(An illegal immigrant says my tagline used to be part of Mexico)

Can someone point out the part of the Constitution that gives elected officials, bureaucratic experts, or Judges the authority to make "Moral Judgments"?

Laws are inherently restrictions on conduct for the purpose of curtailing what's wrong and/or promoting what's right. Concepts of right and wrong are moral in nature. Congress, civil authorities, or someone must make moral judgments in this regard. The debate is not about that moral judgments are made, but over the substance of the moral code invoked.

11
posted on 05/04/2006 3:40:50 PM PDT
by fwdude
(If at first you don't succeed .......... form a committee and hire a consultant.)

The debate is not about that moral judgments are made, but over the substance of the moral code invoked.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it's perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.

SECTION THE SECOND. OF THE NATURE OF LAWS IN GENERAL. Blackstones Commentaries a.k.a. the Lawyer's Bible

------

Scalia criticized the U.S. Supreme Court for its ruling in the 1973 Roe v. Wade case, which established the constitutional right to abortion. He said such decisions can't be made without a moral judgment, and should therefore be left to voters or the politicians they elect.

Justice Scalia is right. The federal court had no authority to decide that case because it's an issue of the civil law of the People, not the statutory law of the national government.

Their assumption of authority is what gave us Roe vs. Wade.

16
posted on 05/06/2006 12:36:16 PM PDT
by MamaTexan
(I will hold my government to the intent of the Founders...whether it likes it or not!)

Can someone point out the part of the Constitution that gives elected officials, bureaucratic experts, or Judges the authority to make "Moral Judgments"?

fwdude comments:

Concepts of right and wrong are moral in nature. Congress, civil authorities, or someone must make moral judgments in this regard. The debate is not about that moral judgments are made, but over the substance of the moral code invoked. -11-

The "moral code invoked" has been established for over two hundred years in our Constitution. Congress, civil authorities, -- all officials, "-- both of the United States and of the several States, shall be bound by oath, or affirmation, to support this Constitution; --"

LPM is quite correct, -- there is nothing in the Constitution that gives elected officials, bureaucratic experts, or Judges the authority to make "Moral Judgments".

They are empowered to make reasonable decisions and to write & enforce reasonable regulations, using due process of law. -- Law that does not deprive any person of life, liberty or property; -- unconstitutionally.

I didn't realize that Blackstone was part of the U.S. Constitution. Which Amendment was it?

If you're so ignorant of the law as to NOT know who Blackstone was, what he said or how he ties into the Constitution, you never WILL understand the words "Republican form of government".

FYI- George Tucker Tucker wrote poetry, political satire, tried his hand at drama, but is known best for his edition of Blackstone's Commentaries and his other legal commentaries, including View of the Constitution, one of the first extended commentaries on the newly ratified Constitution. He is sometimes referred to as the "American Blackstone" for his Americanized version of a multi-volume of Blackstone's Commentaries on the Laws of England.

20
posted on 05/07/2006 4:17:37 PM PDT
by MamaTexan
(I will hold my government to the intent of the Founders...whether it likes it or not!)

The single greatest wrong decision in the subpreme's history was the ruling allowing government to take private property to give to other private citizens in order to increase tax revenues. THAT is so counter to the Constitution and our founding principles that it may be the one ruling which does the most destruction to this Republic in the coming years. ... And you know how I feel about Roe v Wade and the fiat nature of that ruling.

23
posted on 05/07/2006 4:25:34 PM PDT
by MHGinTN
(If you can read this, you've had life support from someone. Promote life support for others.)

The very propositions of the Constitution have "moral judgments" at their base, so we have ample precedent for the practice. The Constitution does not forbid the enactment of laws, all of which are moral judgments, but assumes that laws are good and necessary, as long as they are enacted by a government representative of the citizens. Libertarianism will never be a viable political philosophy - even the liberal knows that some unwritten code of moral conduct must hold sway, even if it be a debauched one.

Would you please give an example of any law in effect that doesn't constrains some conduct considered "wrong", i.e. immoral?

24
posted on 05/08/2006 3:23:52 AM PDT
by fwdude
(If at first you don't succeed .......... form a committee and hire a consultant.)

Concepts of right and wrong are moral in nature. Congress, civil authorities, or someone must make moral judgments in this regard. The debate is not about that moral judgments are made, but over the substance of the moral code invoked. -11-

The "moral code invoked" has been established for over two hundred years in our Constitution. Congress, civil authorities, -- all officials, "-- both of the United States and of the several States, shall be bound by oath, or affirmation, to support this Constitution; --"

LPM is quite correct, -- there is nothing in the Constitution that gives elected officials, bureaucratic experts, or Judges the authority to make "Moral Judgments".

They are empowered to make reasonable decisions and to write & enforce reasonable regulations, using due process of law. -- Law that does not deprive any person of life, liberty or property; -- unconstitutionally.

The very propositions of the Constitution have "moral judgments" at their base, so we have ample precedent for the practice.

Yep, as outlined above, laws can be made. - Constitutional laws.

The Constitution does not forbid the enactment of laws, all of which are moral judgments,

It forbids laws that embody 'moral judgments' which deprive any person of life, liberty or property without due process of law.

but assumes that laws are good and necessary, as long as they are enacted by a government representative of the citizens.

Bull... Our Constitution tries to ensure that 'government representatives' are restrained in their lawmaking by the checks & balances built into its system.

Libertarianism will never be a viable political philosophy -

Telling shift of subject. You are attacking libertarianism right after defending authoritarianism.

even the liberal knows that some unwritten code of moral conduct must hold sway, even if it be a debauched one.

You don't have time to 'untwist' your own comments about prohibitions on machine guns? -- Fine with me.

I wasn't in a conversation about machine guns, you were. But, for some reason, you asked me a direct question about it, and I gave you a direct answer. Banning them was a "moral judgment". It was a wrong moral judgment, IMO, but that's what it was nonetheless.

Is that clear enough for you?

41
posted on 05/09/2006 10:26:09 AM PDT
by EternalVigilance
(George Allen's conservatism is as ephemeral as his virtual fence.)

Every time you see the word "Law" think morality because every law has at it's base a moral component. Whether or not you agree with the moral component at the base of the law is immaterial to whether every law has a moral component.

That says nothing about whether the moral component is moral, amoral or immoral and it says nothing about whther or not the law is constitutional. It's simply a fact that all laws reflect the morality of the lawmaker.

Pol Pot had one set of laws based on his morality and Moses reflected a somewhat different view when he came down from the mountain.

You're arguing that the 'morality' of legislators that ignore basic human rights, - that prohibit machine guns, --- is comparable to legislators who honor their Constitutional obligations. I find that type of reasoning repugnant, and immoral.

Disclaimer:
Opinions posted on Free Republic are those of the individual
posters and do not necessarily represent the opinion of Free Republic or its
management. All materials posted herein are protected by copyright law and the
exemption for fair use of copyrighted works.